STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6839

March 3, 1995

INCOMPATIBILITY:

Simultaneously serving as a member of a township board of review and as the township zoning administrator

Section 4 of the Township Rural Zoning Act does not prohibit a person from simultaneously holding the positions of member of a township board of review and zoning administrator.

Under l978 PA 566 a person may simultaneously serve as a member of a township board of review and as the township zoning administrator.

Honorable Bill Bobier

State Representative

The Capitol

Lansing, Michigan

You have asked whether a person may simultaneously serve as a member of a township board of review and as the township zoning administrator. The answer to your question requires analyzing the nature and duties of each position.

The township board of review is involved solely with property tax assessments. The duties of the board of review are set forth in sections 29 and 30 of the General Property Tax Act, MCL 211.1 et seq; MSA 7.1 et seq, and include the review and correction of property tax assessment rolls, holding hearings on individual assessments, and, in general, taking any action necessary to ensure that the assessment rolls comply with the requirements of the General Property Tax Act. At one time, members of the township board of review were elected officials. Through 1964 PA 275, however, the Legislature amended section 28 of the General Property Tax Act to provide for the appointment of members of the township board of review by the township board.

The township zoning administrator, on the other hand, is involved with the enforcement of zoning ordinances. Sections 1 and 2 of the Township Rural Zoning Act, 1943 PA 184, MCL 125.271 et seq; MSA 5.2963(1) et seq, vest the power to enact zoning ordinances in the township board. The township board appoints members of the township zoning board, which is responsible for adopting and filing recommendations regarding the administration and enforcement of zoning ordinances with the township board. See sections 4 and 7 of the Township Rural Zoning Act. In addition, the township board appoints a township board of appeals, which acts upon all questions regarding the administration of the zoning ordinance, and which hears and decides appeals from and reviews orders of an administrative official or body charged with enforcement of the ordinance. See sections 18 and 20 of the Township Rural Zoning Act.

In addition, the position of zoning administrator is authorized by section 24 of the Township Rural Zoning Act, which states that "[t]he township board shall in the ordinance enacted under this act designate the proper official or officials who shall administer and enforce that ordinance." A zoning administrator's decision regarding zoning enforcement is reviewable by the zoning board of appeals. Hass v City of Menominee, 193 Mich App 163, 165; 483 NW2d 666 (1992).

Section 4 of the Township Rural Zoning Act states as follows:

This provision only prohibits an elected officer of the township from serving simultaneously as a member or employee of the zoning board. Thus, this section does not apply here for two reasons.

First, as noted above under section 28 of the General Property Tax Act, members of the township board of review are appointed, not elected, officers of the township. Section 4 only applies to elected officers. Every word in a statute should be presumed to have meaning, and a statute should not be read so as to render any part of the statute surplusage or nugatory. Detroit City Council v Detroit Mayor, 202 Mich App 353, 358; 509 NW2d 797 (1993). To read section 4 as applying to all officers of the township, whether elected or appointed, would be to render the word elected nugatory. Since the prohibition in section 4 expressly mentions elected officers, it must be concluded that the Legislature did not intend to extend this prohibition to appointed officers. Thus, section 4 does not apply to the appointed officers on the township board of review.

Second, section 4 of the Township Rural Zoning Act applies to members or employees of the township zoning board. The zoning administrator, however, is neither a member nor an employee of the zoning board. The zoning board is an appointed advisory body authorized to make recommendations for the enforcement of the zoning ordinance under sections 4 and 7 of the Township Rural Zoning Act. The zoning administrator, on the other hand, is an official designated by the township board, not the township zoning board, to enforce the zoning ordinance under section 24 of the Township Rural Zoning Act. Thus, section 4 does not apply to a township zoning administrator since the administrator 15 neither a member nor an employee of the township zoning board.

It is my opinion, therefore, that section 4 of the Township Rural Zoning Act does not prohibit a person from simultaneously holding the positions of member of a township board of review and zoning administrator.

The Legislature generally addressed incompatibility of public positions in 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq. Section 1(b) of 1978 PA 566 defines "incompatible offices" as follows:

Section 2 of 1978 PA 566 states that "[e]xcept as provided in section 3, a public officer or public employee shall not hold 2 or more incompatible offices at the same time."

The positions of member of a township board of review and zoning administrator are entirely separate and distinct. Thus, neither position holds supervisory authority over the other, nor is either position subordinate to the other.

A breach of duty occurs when the simultaneous performance of the duties of two offices results in a failure to protect, advance, or promote the interests of one of the offices. OAG, 1989-1990, No 6637, p 125 (June 1, 1989). 1978 PA 566 altered the common law rule regarding incompatibilities arising out of a breach of duty. Under the common law, the mere possibility that a breach of duty might occur rendered two public positions incompatible. Under 1978 PA 566, however, incompatibility occurs only when a breach of duty actually results from the performance of the duties of public office. OAG, 1985-1986, No 6283, p 42 (April 2, 1985). A review of the duties of these two public positions does not suggest that performance of the duties of either position would result in a breach of duty in the other position.

In any event, the township here in question has a population under 25,000. Thus, pursuant to section 3(4)(c) of 1978 PA 566, the township board may authorize a township officer or employee to perform additional services for the township. OAG, 1991-1992, No 6730, p 175 (September 4, 1992).

It is my opinion, therefore, that under 1978 PA 566 a person may simultaneously serve as a member of a township board of review and as the township zoning administrator.

Frank J. Kelley

Attorney General